GURDIT SINGH Vs. ANGREZ KAUR

JUDGEMENT

(1.) This appeal has come up as a result of a dispute relating to succession to the property of one Sunder Singh. Sunder Singh, on 4th November, 1950, executed a will in respect of his property in favour of his niece, Udham Kaur. Subsequently, on 27th October, 1951, one Tarlok Singh executed a document divorcing his wife, Mst. Angrez Kaur, respondent No.1 in this appeal, on the ground that she frequently went away from his house without his consent and whenever he made enquiries from her, she became furious with him. In the document, he recited that Mst. Angrez Kaur was no longer his wife and that she had gone to live with Sunder Singh. According to respondent No. I, on this divorce being granted to her by her first husband, Tarlok Singh, she was married to Sunder Singh by a custom, known as 'Chadar Andazi.' On 7th June, 1952, Sunder Singh revoked his previous will and in that document, acknowledged Mst. Angrez Kaur as his wife and left the property to her. Sunder Singh died in 1953. Thereafter, the appellant, Gurdit Singh, who was a collateral of Sunder Singh in the third degree, applied for mutation. On 12th December, 1954, mutation of the property left by Sunder Singh was sanctioned in favour of Gurdit Singh by the authorities. Thereupon, Mst. Angrez Kaur filed a suit on 17th March, 1955 claiming the property as widow of Sunder Singh. The trial Court decreed the suit, holding that respondent No. 1 had married Sunder Singh by 'Chadar Andazi' and the marriage was valid. On appeal, the Additional District Judge set aside the decree of the trial Court and held that the marriage of Mst. Angrez Kaur with Sunder Singh during the life-time of her first husband, Tarlok Singh, was invalid and was not justified by any custom and, consequently, she could not be treated as the widow of Sunder Singh. Respondent No. 1, thereupon, appealed to the High Court of Punjab and the learned Judge, who heard the appeal, felt that the question of custom had not been properly tried by the trial Court and the first appellate Court. Consequently, he framed the following issue:-

(2.) As is clear from the facts narrated above, the only issue that arose in this case was whether respondent No. 1, Mst. Angrez Kaur, had succeeded in proving the existence of a custom in the community to which she belonged, according to which, Tarlok Singh, her first husband, could divorce her, whereupon she was at liberty to enter into a valid marriage by Chadar Andazi with Sunder Singh, whose property is now under dispute. The parties are residents of the District of Jullundur where, according to Gurdit Singh appellant, no such custom, as claimed by respondent No. 1, exists amongst the Jats, which is the caste to which the parties belong. To urge this point, learned counsel for the appellant relied before us on 'The Digest of Customary Law' by Sir W. H. Rattigan, and on the 'Riwaj-i-am' recorded at the time of the settlement in 1885 and 1914-15. It was argued that Rattigan's Digest of Customary Law in the Punjab had always been treated as an authoritative exposition of the custom prevailing in the Punjab and had been accepted as such by the Privy Council as well as other Courts in India. Reliance was placed on para. 72 at page 471 of the 14th Edition of Rattigan's Digest of Customary Law', where it is stated that "amongst Muhammadans of all classes a man may divorce a wife without assigning any reason; but this power, in the absence of a special custom, is not allowed to Hindus, nor to females of any class". In paragraph 74, he proceeds to lay down that 'Rs. until the former marriage is validly set aside a woman cannot marry a second husband in the life-time of her first husband"; and in paragraph 75, it is stated that "A 'Karewa' marriage with the brother or some other male relative of the deceased husband requires no religious ceremonies, and confers all the rights of a valid marriage."

(3.) The marriage claimed by respondent No. 1 with Sunder Singh was described as a 'Kerewa' marriage. On the basis of the principles laid down in the above paragraphs, it was urged that it should be held that respondent No. 1 could not have entered into a valid marriage with Sunder Singh, while her first husband, Tarlok Singh, was alive. It is, however, to be noted that in paragraph 72, Rattigan himself makes an exception to the general rule and recognises the fact that, if there be a special custom, divorce can be resorted to even by Hindus.